R v Ariki

[2015] NZHC 3240

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2015-054-1049 [2015] NZHC 3240

THE QUEEN

v

HENDRIX VIA ARIKI

Hearing:	16 December 2015
Counsel:	D R Davies and N Wynne for Crown P L Murray and A Whittaker for Defendant
Sentence:	16 December 2015

SENTENCE OF BROWN J

Introduction

[1]      Mr Ariki, you may remain seated until I ask you to stand.

[2]      You appear for sentence today having pleaded guilty on 24 November 2015 to one count of manslaughter of the deceased John Tui Anderson.

[3]      You    sought   a    sentencing    indication    through    your   counsel    and   on

11 November 2015  following  an  oral  hearing,  I  gave  you  an  indication.    You accepted that indication on 18 November 2015.

[4]      Before turning to the details of sentencing I want first to acknowledge all the members of the family of Mr Anderson who are in Court today.

R v ARIKI [2015] NZHC 3240 [16 December 2015]

[5]      In  particular  I  want  to  acknowledge  the  courage  of  the  victim  impact statements which the Court received from Mr Anderson’s mother, his sister Eileen and his brother Waylon.   In any case involving death in this type of context, the wider family will be tragically affected.   The present case is no exception.   And particularly sadly two young children have lost their father.

Facts

[6]      The deceased has two children with his ex partner Ms Davis and maintained a relationship with all of them, often visiting their home address in Palmerston North.

[7]      At the date of the incident you were in a relationship with Ms Davis who was pregnant with your child. You were not residing in the Palmerston North address but did visit regularly.

[8]      You knew the deceased.  Indeed you were second cousins.  However the two of you had not met face-to-face since your relationship with Ms Davis began.

[9]      Prior  to  the  night  of  6 April 2015  you  had  received  indirect  threats  of violence via Ms Davis but there was no evidence of any direct threat having being made by Mr Anderson towards you.

Circumstances

[10]     On the evening of 6 April 2015, you were at the Palmerston North address. Also present was Ms Davis, her four year old daughter and her 23 year old sister.

[11]     You were drinking in an attached garage and came inside at about 9.30 pm. You went into the master bedroom where Ms Davis was exchanging text messages with Mr Anderson.  Mr Anderson knew that you were at the address.  Ms Davis told you that he was outside at the address.

[12]     You looked out the master bedroom window and you saw him approaching the address.  You went into the kitchen and picked up a large kitchen knife with a

blade that measured approximately 20 centimetres.  You then returned to the master bedroom and stood beside and slightly behind the open bedroom door.

[13]     When Mr Anderson entered the bedroom, using the knife you had got from the kitchen, you stabbed him once in the abdomen.  He then walked out of the house.

[14]     Ms Davis followed a short time later and found him stumbling around in the shared driveway area.  He collapsed on the driveway, approximately 30 metres from the house.  Ms Davis alerted her sister who called emergency services.

[15]     You came out of the house still holding the knife.  On seeing him collapsed on the driveway you threw the knife under a tree near the address and helped administer first aid before the police and the ambulance arrived.

Injuries to victim

[16]     Mr Anderson sustained a single fatal stab wound to his abdomen.  A number of blood vessels around his bowel had been severed by the knife blade.  Doctor’s and surgeons at Palmerston North Hospital were unable to stop the bleeding and  he passed  away  in  the  Intensive  Care  Unit  of  the  Hospital  at  about  7.00 am  on

7 April 2015.

Principles and purposes of sentencing

[17]     In sentencing you I have taken into account a number of sentencing purposes and principles as set out in the Sentencing Act 2002.  The relevant purposes I have taken into account are:

(a)       holding you accountable for the harm done to the community by your offending;

(b)promoting in you a sense of responsibility for, and acknowledgement of, that harm;

(c)       denouncing your conduct;

(d)      deterring you and other persons from such offending; and

(e)      assisting in your rehabilitation and reintegration.

[18]     I have also taken into account the principles of sentencing set out in s 8 of the

Sentencing Act.

Submissions

Crown submissions

[19]     The Crown submissions commenced by noting that there is no sentencing guideline for manslaughter sentencing, drawing attention to the observations of the Court of Appeal in Waipuka v R:1

This Court has repeatedly emphasised that there is no tariff for sentencing in manslaughter  cases.    It  is  a  matter  of  assessing  the  culpability  of  the offending in the particular circumstances of the case.  In R v Tai, this Court suggested that in manslaughter cases where R v Taueki is relevant, the sentencing judge effectively has a choice.  The offender’s culpability may be assessed by reference to comparable manslaughter sentencing or the case may be approached by considering it in Taueki terms, making an appropriate adjustment for the fact that death has ensued.  A counsel of perfection might be to use both approaches, each providing a check on the other.

[20]     The Crown submits that four Taueki aggravating factors are present in this offending to various degrees which the Crown described as follows:2

Extreme violence:   implicit in the use of a knife.   The violence was unprovoked and gratuitous.

Premeditation:   the level of premeditation is not high but evident in the defendant seeing the victim approach the flat from the bedroom window, retrieving a knife from the kitchen, before returning to the bedroom and waiting for the victim behind the door.

Serious injury:  the most serious injury possible was inflicted; death.

The  use  of  a  weapon:    the  defendant  used  a  large  kitchen  knife  that measured approximately 20 centimetres.

1      Waipuka v R [2013] NZCA 661 at [32].

2      R v Taueki [2005] 3 NZLR 372.

[21]     While submitting that there was no provocation by the deceased and that you were not acting in self defence, the Crown accepts that there was no associated violence in addition to the single, but fatal stab to the deceased’s abdomen.

[22]     The  Crown  contends  that  the  offending  falls  within  the  higher  end  of band two and the lower end of band three of Taueki.   It says that weight must be accorded to the fact that the sentence indication is for manslaughter, not merely causing grievous bodily harm.  Accordingly the Crown contends that an appropriate starting point is between eight to 10 years’ imprisonment.

[23]     Turning to comparison with similar cases, the Crown refers to R v Kaihau3 (starting point eight years nine months’ imprisonment), R v Eastham4 (starting point seven years’ imprisonment), R v Olley5 (starting point nine years’ imprisonment) and R v Edmonds6 (starting point 11 years’ imprisonment).

[24]     In the Crown submission, taking into account the intention to inflict harm, a single stab to the abdomen in circumstances where there was no associated violence but no provocation by the victim, an appropriate starting point is nine years’ imprisonment.

[25]     The Crown acknowledges that you are entitled to credit for entry of a guilty plea.

Defence submissions

[26]     Mr Murray accepts that there are two Taueki aggravating features present in this incident:

(a)       use of a knife;

(b)      serious injury resulting in death.

3      R v Kaihau [2013] NZHC 3192.

4      R v Eastham [2013] NZHC 2792.

5      R v Olley [2012] NZHC 40.

6      R v Edmonds HC Christchurch CRI-2009-009-013108, 15 December 2010.

[27]     He makes the point that the use of the knife was not premeditated in that you did not bring it to the flat.  He also submits that care must be taken not to double count interconnected features as separate aggravating features, such as use of a knife and the serious violence inherent in the use of such a weapon.  He argues that your actions  cannot  be  described as  prolonged,  unprovoked  or  gratuitous,  to  use the expressions in the Court of Appeal’s discussion in Taueki of extreme violence, and he therefore takes issue with the Crown submission that your actions can be categorised as either extreme violence or premeditated.

[28]   While acknowledging that your conduct was a pre-emptive strike, it is contended on your behalf that your actions can be viewed as a case of excessive self defence.  The submission is made that excessive self defence and the conduct of the victim are matters that may lead to a lower starting point, drawing attention to Taueki at [32](b).

[29]     While recognising that you have two previous convictions for relatively low level offending in 2010, Mr Murray describes those convictions as amounting to the absence of a mitigating factor rather than the presence of an aggravating factor.  He further draws attention to a number of personal mitigating features:

(a)       your generally good character;

(b)your genuine and deep remorse which he contends should receive a credit additional to that for a guilty plea;

(c)       your willingness to participate in a process of restorative justice.

It is also submitted that a discrete discount is appropriate to recognise the six months you have spent on electronically monitored bail, the restrictiveness of the bail conditions and your compliance.

[30]     In terms of comparative sentences Mr Murray draws attention to R v UGT7

(starting point six years’ imprisonment), Woods v R8  (starting point four years and

7      R v UGT HC Rotorua CRI-2011-263-000073, 21 July 2011.

nine months’ imprisonment), R v Harris9  (starting point five years’ imprisonment)

and R v Paton10 (starting point five and a half years’ imprisonment).

[31]     In the light of those decisions Mr Murray submits that a starting point in the range of five to six years’ imprisonment would be appropriate given the aggravating features  of  your  offending  but  before  consideration  is  given  to  excessive  self defence.

Sentencing approach

[32]     It is important that all those present understand and that includes both you and the members of Mr Anderson’s family, that the role of the Court in sentencing does not involve plucking a term of imprisonment out of the air.   The Court is sentencing the defendant for the offence of manslaughter.  Furthermore the Court is required to follow certain well established guidelines.

[33]     The approach I intend to follow in arriving at the appropriate sentence is that established by the Court of Appeal in Taueki which involves considering the circumstances  and  seriousness  of  the  offending  in  setting  the  starting  point.    I consider relevant mitigating circumstances which might reduce that starting point.

[34]     I accept Mr Murray’s submission that the aggravating features in this case are the use of a knife and the serious injury and death which resulted.   I also accept Mr Murray’s submission that the factors of extreme violence, as explained in Taueki, and premeditation in the true sense are not present.

[35]     However I do not consider that an attack from behind a door without notice to the victim can fairly be described or characterised as self defence, excessive or otherwise.  You had open to you a number of options as explained by Ms Davies. You could have departed via the window.  You could have retreated to another room. The agreed statement of facts notes that all of the bedroom doors at Linton Street

were equipped with internal bolt locks.

8      Woods v R [2011] NZCA 573.

9      R v Harris HC Greymouth CRI-2009-018-000901, 8 April 2011.

10     R v Paton [2013] NZHC 21.

[36]     In my view the offending falls in band two of Taueki, albeit at the upper end of the five to ten year starting point range.   I consider that in the present case a starting  point  of  eight  years’ imprisonment  is  the  appropriate  reflection  of  the offending, significantly above what Mr Murray urges but at the bottom of the range proposed by the Crown.

[37]     I consider you are entitled to a modest discount for your previous good conduct and for providing prompt assistance to the deceased.  In my reasons at the sentencing indication I indicated that I did not consider that a specific discount for remorse was warranted.  Having listened to Mr Murray’s submissions and read again the Supreme Court’s decision in R v Hessell I accept that there should be recognition for the remorse you have demonstrated.  In that connection I have taken into account the letter from your psychologist, the two letters from your mother and the report of the Probation Officer.

[38]     I also accept that some recognition should be made in terms of s 9(2)(h) of the Sentencing Act 2002 for the period a little in excess of six months which you spent on EM bail.  Contrary to the figure indicated previously, I allow a discount of

15 per cent  collectively for all these mitigating factors.   Applying a 15 per cent discount to the starting point reduces the sentence to six years, nine and a half months’ imprisonment. You promptly accepted the sentencing indication and entered a plea of guilty to the manslaughter charge.

[39]     I agree with Mr Murray that you are entitled to the full Hessell discount.  A

25  per cent  discount  results  in  a  sentence  of  approximately five  years  and  one

months’ imprisonment.

Please stand up.

[40]     Consequently the sentence which I impose as an end sentence is five years and one months’ imprisonment.

Brown J

Solicitors:

Ben Vanderkolk & Associates, Crown Solicitors, Palmerston North

P L Murray, Barrister, Palmerston North